Day v Australian Electoral Officer for SA; Madden v Australian Electoral Officer for Tasmania [2016] HCA 20: High Court Dismisses Application

The High Court has unanimously upheld amendments to the Commonwealth Electoral Act 1918 (Cth) (the Act) concerning the new form of the Senate ballot paper and the process for marking it.

The plaintiffs in their submissions, contended, in part, that the new form of the ballot paper and the alternative means for marking it above and below the line prescribed more than one method of choosing senators contrary to s 9 of the Constitution.

Background

The challenged provisions concern the new form of the Senate ballot paper and the process for marking it. Recent amendments to the Act allowed electors to vote “above the line” on the Senate ballot paper by numbering at least six squares sequentially. The list of candidates marked “1” will be allocated preferences in the order in which they appear, then followed by the list of candidates marked “2”, and so on.

This system replaces the previous system, by which electors could make a single “above the line” vote by marking a “1” for a particular group vote, after which preferences would be allocated according to that group’s list of preferences.

The Challenge

Mr Robert Day, a Senator for South Australia, filed an application for an order to show cause with the Court, seeking declarations that:

• ss 4(1), 239, 269, 272 and Form E in Part 1 of Schedule 1 of the Act (as amended) are invalid; and
• the Commonwealth Electoral Amendment Act 2016 (Cth), Schedule 1, Parts 1 (items 1 to 42A) and 3 (items 89 and 92 to 94) are invalid.

Mr Day seeks relief including an order restraining the defendants (being the Commonwealth and the Australian Electoral Officer for South Australia) from issuing ballot papers for the next Senate election in the form of Form E as it stands following the Amendments.

An application for an order to show cause was also filed by Mr Peter Madden and six others. Each of those plaintiffs is an elector enrolled to vote in the election of Senators for a State or Territory of Australia. The grounds of their application and the relief sought in it are substantially identical to those contained in Mr Day’s application.

The Ruling

The High Court unanimously dismissed both applications. The High Court held that the term "method" in s 9 of the Constitution is to be construed broadly, allowing for more than one way of indicating choice within a single uniform electoral system.

The High Court further held that a vote above the line was a direct vote for individual candidates consistent with s 7 of the Constitution. Finally, there was no disenfranchisement in the legal effect of the voting process and there was no infringement of the implied freedom of political communication or the system of representative government.

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High Court of Australia – Judgment summary

Madden v Australian Electoral Officer for the State of Tasmania – unimelb.edu.au